Why Mediate a Land Use Dispute?

by Judge Marshall K. Berger (Ret.)

When disputes arise over land use issues, whether it is the approval or denial of a land use application, we have traditionally turned to our judicial system for their resolution. Indeed, in Connecticut, we have been fortunate to have a Judicial Branch that has appropriately resolved those disputes. Nevertheless, that system, even with the new Land Use Docket, is regulated by judicial rules and procedures which both create conflict between the parties and confine and limit the scope of the final judgment.

While generally not utilized, mediation is certainly an effective, and as will be discussed below, a more thorough method to resolve land use disputes. It obviously works well for other disputes in litigation and there are many reasons why it should be considered as an alternative to traditional litigation. It is a process of compromise where both parties can protect their interests and attain results not available in litigation. Importantly, mediation of a land use dispute avoids the “winner take all” outcome of traditional land use litigation.

In discussing mediation, one federal entity[1] lists eight reasons to mediate:

  • The process is informal and flexible
  • The process is confidential
  • The process is quick and inexpensive
  • The parties have a greater degree of control
  • The process can preserve relationships
  • The process can provide mutually satisfactory results
  • The process can provide a comprehensive and customized agreement
  • The process can provide a foundation for future problem solving.

Each one of these reasons surely applies to land use disputes. Mediation is informal and can be accomplished relatively quickly at the parties’ direction, thus reducing their litigation costs. A format that affords the parties an opportunity to avoid years of litigation with its attendant costs and attorneys’ fees is something that should always be considered by the parties.

To the extent mediation is a confidential process - not “on the record”- it has obvious benefits for all litigants. Unlike a judicial proceeding which is open and “on the record,” the discussions are private and not available for public review after the mediation is over. In that private setting, the parties are free to craft an agreement which may go far beyond the result that a court might render.[2]

The next five reasons are all interconnected and frankly go the heart of the mediation process. First and foremost, the parties control the outcome. It is the exact opposite of a judicial proceeding where the parties have ceded control to the court. Unlike a contract or personal injury lawsuit where the plaintiff may win a money judgment and need not have further contact with the opposing party (other than collecting the judgment), the successful land use applicant must still have dealings with town’s administrative boards. Mediation can preserve the relationship as opposed to the frequent breakdown of relationships that occur after trial. Indeed, it is not uncommon for an applicant to have multiple applications for land use development in a town and maintaining a respectful workable relationship is mandatory for both the developer, the town, and all interested parties.

A process that allows the parties to craft a comprehensive and customized agreement is one that not only provides for a mutually satisfactory result but one that can provide for future problem solving. Land use judicial decisions which simply result in the appeal being sustained – or dismissed- are a far cry from the collaborative process inherent in mediation. As noted, developers and town administrative boards and agents must work together throughout both the application and construction phase of a project. In most cases, a singular judicial decision will not address the myriad of issues inherent in land development. Moreover, rarely is the application in litigation the only piece of the land development puzzle. Often there are related applications before other town commissions which bring further issues that must be resolved. The ability to negotiate a mutually satisfactory plan to address many, if not all, potential issues or create a forum for their resolution, may be itself, the sole reason to seek mediation for land use disputes.  

Why consider mediation for land use disputes? The answer is simple: it provides a better opportunity for resolution.

Judge Marshall K. Berger (Ret), formerly the Presiding Judge of the Connecticut Superior Court Land Use Docket, is a member of the Alternative Dispute Resolution group at Pullman & Comley, LLC, which provides resolution opportunities to parties engaged in litigation including land use and environmental disputes.

[1] The United States Office of Special Counsel

[2] To the extent the mediation results in the settlement or withdrawal of a pending case, the final agreement would have to be reviewed by the Superior Court pursuant to General Statutes §§8-8(n) and 22a-43(d).


Jump to Page